So far in ongoing talcum powder litigation, pharmaceutical giant Johnson & Johnson has lost two cases – but has prevailed in two more. The latter two are troubling for plaintiffs, as they may help J&J in cases going forward.
Earlier this year, J&J was ordered to pay $10 million in compensatory damages and $62 million in punitive damages to the family of a woman whose death from ovarian cancer was attributed to the long-term use of talcum powder. The jury foreman in that case said, “It was really clear they were hiding something.”
The family’s attorney added, “It was a just verdict given the horrible conduct of Johnson & Johnson.”
In a second case, J&J was ordered to pay $10 million in compensatory damages and $50 million in punitive damages to a 62-year-old South Dakota woman who suffers from ovarian cancer – again, caused by her use of talcum powder.
At that time, Carl Tobias, a law professor from the University of Richmond pointed out, “The more talc verdicts that come down against them adds to the public’s growing distrust of their baby powder, which is one of their iconic products.” He added, “There are both economic and reputational issues that may motivate them to start thinking about a global settlement of these cases.” Tobias expressed his belief that J&J would do well to create a settlement program for the more than 1,200 pending lawsuits against the company.
This month, the tables turned as Judge Nelson Johnson dismissed two cases against J&J on grounds that there was insufficient evidence to support their claims. Judge Nelson said the testimony from expert witnesses hired by the plaintiffs’ counsel had “multiple deficiencies,” including “narrowness and shallowness.”
According to the plaintiffs’ lawyer, Ted Meadows, Judge Nelson’s ruling won’t have much of an effect on the 1000 cases pending in St. Louis – but may spell trouble for those bringing suit in Johnson & Johnson’s home state. He nonetheless plans to appeal the ruling.
In the meantime, J&J management is pleased. A company spokesperson said, “The court’s decision today appropriately reflects the science and facts at issue in this litigation.”
That, of course, depends on what “science and facts” one is going by. Dr. Daniel Cramer of Harvard Medical School has been researching the connection between cancer and the use of talc for nearly 35 years. Citing 20 case-control studies conducted since the 1980s, he says that when applied to the genital area, use of talc can increase a woman’s risk of ovarian cancer by approximately 30%. The International Agency for Research on Cancer has also recognized talc as “possibly carcinogenic” to humans. On the other hand, gynecologic oncologist Dr. Robert Coleman of the Anderson Cancer Center at the University of Texas cites two “prospective cohort studies,” which he says have greater credence than case-control studies, pointing out that those studies showed no connection between talc use and cancer risk. It’s worth pointing out that Dr. Coleman has been paid by Johnson & Johnson as a consultant. Make of that what you will.